Kerala Police Act to curb the defamatory content on Social Media

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by Dr Bhargavi D Hemmige      24 November 2020

You have freedom of speech but freedom after the free speech, I cannot guarantee that – this infamous statement of Idi Amin, is remembered in the context of the approval of the amendment of Kerala Police Act (KPA) by its Governor Arif Mohammad Khan on 21st November 2020. This amendment holds expressing, publishing, or disseminating any matter that is threatening, abusive, humiliating, or defamatory a punishable offence with imprisonment of up to three years and a fine of up to Rupees 10000 or both.

This order which has the Governor’s nod is tabled by the Left Democratic Front government which is in power in Kerala, headed by Chief Minister Pinarayi Vijayan has once again opened the debate of freedom of speech and expression guarantee by article 19(a) of our constitution.

Background incident: The revision of the KPA was tabled by the government in the backdrop of an incident involving a group of women activists who were abused by a YouTuber in his youtube channel “Vtix Scene”.

These ladies after filing a complaint against him went to his residence assaulted him physically filled his laptop and mobile phone, and broadcasted the same on one of the activist’s Facebook page.

As a response to this amendment of KPA act was proposed by inserting section 118-A to prevent online vilification with regards to women and children. But clearly, it seems to be a handy tool to silence critics.

The emergence of a police state: According to the ordinance, it intends to control the slanderous speech on online platforms and to convict only those who produce, publish or disseminate derogatory content to insult, intimidate, or defame any person through social media. But, as asserted by the opposition leader Ramesh Chennaithala in the Kerala assembly who was among the first to oppose this amendment, opined that it gave the police unlimited power and authority to examine the published and broadcast content and to register the case even in the absence of a formal complaint.

This act includes other mass media like print, visual, posters, and even billboards, giving the power to target and arrest any individual on the pretext of posting derogatory and insulting comments. This act since its amendment has attracted widespread criticism on both mainstream media and social media platforms. And is considered a draconian move by the government to curb free speech.

Section 66A of IT act: This act seems to be modelled in the lines of repealed Section 66A, of Information Technology Act of 2000, which had criminalized online communication which was offensive, annoying, dangerous, injurious, insulting, and so on. This act back then landed many innocent citizens in jail for their criticism of the government, until it was struck down by the supreme court in 2015. The remarkable case which was instrumental for this landmark judgment is famously known as Shreya Singhal v. Union of India, wherein a lawyer, activist Shreya, filed Public Interest Litigation in the Supreme Court of India.

Now, in a way, KPA seems to be a repackaged or recycled version of 66A because the words like ‘an injury to the mind or reputation’ appear in a similar pattern, both in 118A and 66A. This ordinance undoubtedly seems to threaten the citizens’ right to dissent and protest, which is the lifeblood of democracy.

Section 124A: In another landmark judgment Kedar Nath Singh v. the State of Bihar, the court clearly explained what accounts for sedition and what accounted for violence. It furthermore, clarified that only such verbal violence which could incite public disorder was punishable. It said “… A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or to create public disorder.”

Even though the CM has clarified that the new amendment to the Kerala Police Act will not in any way be used against curbing free speech or gag the impartial media activity, this ordinance which gives arbitrary powers to police to arrest anyone for expressing their opinion and the timing (when the Kerala government is embroiled in many controversies) has raised many eyebrows.

Keywords – Sedition, Freedom of Speech and Expression, Social Media